scholarly journals PLEDGE AS A PRECAUTIONARY MEASURE IN CRIMINAL PROCEEDINGS: SOME PROBLEMATIC ASPECTS

2021 ◽  
pp. 171-178
Author(s):  
P. D. Denysiuk
Keyword(s):  
Human Rights ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Maximum Size ◽  
Precautionary Measure ◽  
Criminal Proceedings ◽  
Private Interests ◽  
Procedure Code ◽  
European Court ◽  
Precautionary Measures

The article analyzed court statistics on the consideration of requests for the application of precautionary measures by the courts of first instance and it is established that detention remains one of the most common. Was emphasized that the rulings of the European Court of Human Rights suggest that detention should be an exceptional precautionary measure. An alternative to it may be a pledge. The characteristics of pledge were described as precautionary measures, which are defined in the relevant provisions of the Criminal Procedure Code of Ukraine. The problematic issue of determining the amount of the pledge is considered. The case law of the European Court of Human Rights is analyzed and the main rules for determining the amount of pledge are highlighted: application of a differentiated approach; justification of the amount of pledge not only during the initial consideration of the request for the application of a measure of restraint, but also during the decision on the need to continue detention; accounting the amount of damages for which this person is accused. It was stated that the norms of the criminal procedure legislation in this part correspond to the practice of the European Court of Human Rights, and the amount of pledge is correlated with such indicators as the circumstances of the criminal offense; property status of the suspect, accused; data on his identity; the presence of risks of concealment, possible influence on the participants in criminal proceedings and various ways of obstructing the pre-trial investigation, referred to in article 177 Criminal Procedure Code of Ukraine. The issues of discussion regarding the maximum size of pledge and it is concluded that in Criminal Procedure Code of Ukraine are expanded list of conditions that the court considers the election of a preventive measure, and therefore the court will be able, within the statutory amount of pledge, to choose the one that can ensure a balance between the private interests of the person (won’t be excessive) and the interests of justice (ensure that suspects and accused perform their duties). It is argued that clarifying the legality of the origin of pledge and expanding the list of objects that can be recognized as pledge in the sense of a precautionary measure can only complicate the procedure for applying pledge.

scholarly journals JUSTIFICATION OF SUSPICION DURING THE APPLICATION OF CRIMINAL PROCEEDING MEASURES

2021 ◽  
Vol 75 (2) ◽  
pp. 169-174
Author(s):  
Maryna Savchuk ◽  
◽  
Artem Shapar ◽  
Keyword(s):  
Human Rights ◽  
Crucial Role ◽  
Scientific Article ◽  
Precautionary Measure ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Criminal Proceeding ◽  
European Court ◽  
Criminal Procedure Law ◽  
Precautionary Measures

The scientific article contains information on the study of the concept of «reasonableness of suspicion», the study by the investigating judge of the evidence that substantiates the suspicion during the application of precautionary measures. The article analyzes scientific works on certain topics, decisions of the European Court of Human Rights and national legislation. The main problem is identified, which is related to the fact that the investigating judge in most cases, when considering a request for a measure of restraint, ignores the need to examine the evidence related to the examination of suspicion. The result of the above material is the fact that the notification of a person of suspicion can in no way justify the application of measures to ensure criminal proceedings. An important procedural step, which plays a crucial role in the pre-trial investigation stage, is the notification of a person of suspicion. Suspicion is presented to a person only on the basis of proper, admissible, sufficient and reliable evidence, it allows to suspect a person of committing a criminal offense. The pre-trial investigation body does not always establish all sufficient grounds for such a suspicion, so the question arises as to its validity. After the notification of suspicion, it is possible to apply one of the measures to ensure criminal proceedings, namely: a precautionary measure. The norms of the criminal procedure law oblige the court, when choosing a measure of restraint, to take into account the data underlying such a decision. The presence of a notice of suspicion is not an identical notion of the validity of the suspicion. In order to substantiate the suspicion, the parties to the criminal proceedings are obliged to provide the investigating judge with evidence of the circumstances to which they refer, which in turn entails the duty of the investigating judge, the court to verify and evaluate the evidence. The presence of risks does not justify the suspicion. The need to comply with the rule on the verification of «reasonableness of suspicion» is realized by establishing criteria that should be investigated and established by the investigating judge during the consideration of motions for the application of measures to ensure criminal proceedings.

scholarly journals LEGAL STANDARDS OF THE EUROPEAN COURT OF HUMAN RIGHTS REGARDING REQUIREMENTS FOR ADMISSIBILITY OF EVIDENCE IN CRIMINFL PROCEEDINGS

2020 ◽  
pp. 252-261
Author(s):  
O. Mazur
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
The State ◽  
International Standards ◽  
Criminal Proceedings ◽  
Legal Standards ◽  
Procedural Law ◽  
Procedure Code ◽  
European Court ◽  
Protection Of Human Rights

The article deals with the requirements of the European Court of Human Rights regarding evidence and evidence, which are disclosed in the provision of paragraph 3 of Article 6 “The right to a fair trial” of the Convention for the Protection of Human Rights and Fundamental Freedoms, the latest practice of the Supreme Court regarding the criteria for admissibility of evidence and analysis of the current criminal procedural law. As you know, the attitude of the state towards the protection of human rights and freedoms is one of the indicators of its democracy. Ukraine has chosen the European Community as the main strategic vector of development. Such a vector provides for the unification of the regulatory framework in accordance with European legislation, as well as compliance by law enforcement agencies with international standards for the protection of the rights and freedoms of citizens. That is why, the corresponding rule is enshrined in the Criminal Procedure Code of Ukraine, providing that the rule of law in criminal proceedings is applied taking into account the practice of the European Court of Human Rights (part 2 of article 8). A detailed analysis of the provisions of the Criminal Procedure Code of Ukraine regarding the admissibility of evidence in criminal proceedings and the relationship of these norms with the legal positions of the European Court of Human Rights is carried out. They also examined the requirements of the European Court of Human Rights regarding the admissibility of evidence in decisions in which a violation by the state of the norms of the Convention was found, and in decisions in which such a violation was not found. So, summarizing and analyzing the practice of the ECHR, we saw that the Court emphasizes that a guilty verdict cannot be generally based only on inadmissible evidence, and if such a sentence is pronounced, then this is a violation of Article 1 6 of the Convention in respect of an unfair trial. Therefore, the investigator, prosecutor, investigating judge and judge should take into account the relevant practice of the ECHR and the norms of the Convention in their procedural activities in order to avoid these violations and to submit complaints to the European Court of Human Rights in the future.

scholarly journals GARANTISMO, SISTEMA ACUSATÓRIO E A PRODUÇÃO DE PROVA EX OFFICIO PELO MAGISTRADO

2020 ◽  
Vol 2 (59) ◽  
pp. 210
Author(s):  
Teodoro Silva SANTOS ◽  
Nestor Eduardo Araruna SANTIAGO
Keyword(s):  
At Risk ◽  
Human Rights ◽  
Criminal Procedure ◽  
Fundamental Rights ◽  
Criminal Proceedings ◽  
Legal Process ◽  
Accurate Analysis ◽  
Criminal Process ◽  
Procedure Code ◽  
European Court

RESUMO Objetivo: A análise da possibilidade de produção de provas ex officio pelo magistrado, prevista na redação do inciso I do art. 156 do Código de Processo Penal, advinda da reforma implementada pela Lei nº. 11.690/2008, que alterou os dispositivos relativos à prova no Processo Penal à luz da Constituição e do Garantismo Penal. Metodologia: Métodos analítico e dedutivo, mediante pesquisa bibliográfica e documental de doutrina e jurisprudência, especialmente dos tribunais superiores brasileiros e do Tribunal Europeu de Direitos Humanos, no âmbito do modelo garantista constitucional e também legal. Resultados: A possibilidade de iniciativa probatória pelo juiz no processo penal antes de iniciada a ação penal, expressa no art. 156, inciso I, do Código de Processo Penal, com a redação advinda da Lei nº. 11.690/2008, contrapõe-se ao garantismo penal, bem como à Constituição, por colocar em risco a imparcialidade judicial. A norma se exprime como resquício de um regime inquisitorial, por afrontar os direitos e as garantias fundamentais, notadamente o princípio da imparcialidade, alcançado por meio do distanciamento do magistrado da função probatória. Contribuições: O tema é relevante, pois abre espaço para uma análise precisa da persecução da verdade no contexto do processo penal ante a possibilidade de atuação ex officio do juiz na produção de provas, fato este que se contrapõe ao sistema processual acusatório adotado no Brasil, centrado na existência de sujeitos processuais diversos e detentores de funções distintas: acusar, defender e julgar, em consonância com o princípio do devido processo legal e de outros princípios corolários deste. Palavras-chave: sistema acusatório; garantismo processual; produção de prova ex officio; imparcialidade. ABSTRACT Objective: To analyze the possibility of producing ex officio evidence by the magistrate, provided for in item I of article 156 of the Code of Criminal Procedure, arising from the reform implemented by Law no. 11,690 / 2008, which amended the provisions relating to evidence in the Criminal Procedure in the light of the Constitution and the Penal Guarantee. Methodology: Analytic and deductive methods, by way of bibliographic and documentary research of doctrine and jurisprudence, especially from the Brazilian higher courts and the European Court of Human Rights, within the scope of the constitutional and also legal guarantee model. Results: The possibility of evidential initiative by the judge in the criminal process before the beginning of the criminal lawsuit, expressed in Article 156, item I of the Criminal Procedure Code, with the wording granted by Law no. 11,690/2008, opposes the criminal guarantee, as well as the Constitution, for putting at risk the judicial impartiality. The law expresses as a remnant of an inquisitorial regime to affront fundamental rights and guarantees, notably the principle of impartiality, achieved by way of distancing the magistrate from the evidence function. Contributions: The topic is relevant, as it opens up an accurate analysis of the pursuit of the truth in the context of criminal proceedings given the possibility of ex officio action by the judge in the production of evidence, a fact that contrasts with the accusatory procedural system adopted in Brazil, centered in the existence of different procedural subjects and holders of different functions: accusing, defending and judging, in line with the principle of due legal process and other corollary principles thereof. Keywords: accusatory system; procedural guarantee; production of ex officio evidence; impartiality.

scholarly journals Compliance with the principle of adversarial in disclosing the materials of covert investigative (detective) actions to the defense

2019 ◽  
pp. 81-89
Author(s):  
O.G. Yanovska
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Proceedings ◽  
National Courts ◽  
Procedure Code ◽  
European Court ◽  
The Right

The defense has the right to have information about all elements of the procedural order of receiving the prosecution evidence, in particular, about the materials of the covert investigative (detective) actions (further - CIDA), which the latter intends to use against it in court. However, this right of defense is violated quite often. In addition, these issues remain unresolved at both the legislative and jurisprudence levels. The purpose of the article is to address some of the problematic issues that arise during the disclosing the materials of CIDA to the defense at the pre-trial stage of criminal proceedings. The research made it possible to draw the following conclusions from an analysis of the case-law of the national courts and of the European Court of Human Rights: 1) if the prosecution timely fulfilled the requirements of Article 290 of the Criminal Procedure Code of Ukraine (further - CPC of Ukraine), took all necessary and dependent measures aimed at declassification of materials that became the basis for the CIDA, but such materials were not declassified For reasons that did not depend on the prosecutor's procedural activity, there were no violations of the requirements of the said CPC of Ukraine by the prosecution. In such a case, the court shall evaluate the evidence obtained for their propriety and admissibility, as well as in combination with other evidence in the case, in accordance with the requirements of Article 94 of the CPC of Ukraine; 2) if the prosecution on his own initiative and/or at the request of the party of defense did not take the necessary measures, which depend on it and aimed at declassification of the materials which became the basis for the CIDA, in that case there is a violation of the rules of Article 290 of the CPC of Ukraine the consequences provided for in paragraph 12 of this Article; 3) if in the course of criminal proceedings in court, the prosecutor's repeated request for declassification of procedural documents which became the basis for the CIDA was granted and they were at the disposal of the prosecution party, then these procedural documents as received by the prosecution party after the transfer cases before the court should be opened in accordance with part eleven of Article 290 of the CPC of Ukraine.

scholarly journals PROSECUTOR'S SUPERVISION OF LAW CONDUCTING INVESTIGATIVE (SEARCH) ACTIONS

2020 ◽  
pp. 377-386
Author(s):  
Я. Ю. Конюшенко
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
The Law ◽  
Procedural Guidance ◽  
Compliance With The Law ◽  
The Relationship

The purpose of the article is to define the prosecutor's supervision over investigative (search) actions as a legal guarantee of human rights, as well as problematic issues in its implementation and to make proposals to improve the current criminal procedure legislation of Ukraine. The article defines doctrinal approaches to the concepts of "prosecutor's supervision over compliance with the law during the pre-trial investigation" and "prosecutor's procedural guidance of the pre-trial investigation" in the context of investigative (search) actions. The author came to the conclusion that the provisions of the Constitution of Ukraine, the Law of Ukraine "On the Prosecutor's Office" and the Criminal Procedure Code of Ukraine in terms of regulating the functions and powers of the prosecutor during the pre-trial investigation. Based on the study, it is proposed to consider procedural guidance as one of the forms of prosecutor's supervision over the pre-trial investigation, which is implemented directly by the prosecutor or a group of prosecutors who are appointed to carry it out in a particular criminal proceeding. The author also emphasizes the existence of forms of supervision of the highest level prosecutor on the legality of these actions, which are implemented through the demand and study of information on the progress and results of pre-trial investigation, criminal proceedings and certified copies of court decisions and study of compliance with criminal procedure. A number of problematic issues during the prosecutor's supervision in pre-trial criminal proceedings are outlined, which relate to the relationship between the prosecutor's supervision and judicial control over the legality of investigative (search) actions; subjects and subject of supervision of the prosecutor in this sphere; providing the prosecutor-procedural manager and prosecutors of the highest level with instructions and instructions during the investigative (search) actions. To address these issues, it is proposed to amend the current criminal procedure legislation of Ukraine. The study of the materials of criminal proceedings and the survey of the subjects of criminal proceedings indicate the existence of a number of problematic issues that exist during the implementation of the prosecutor's procedural guidance of investigative (search) actions in the context of human rights.

SHORTENED TIMELINE OF APPEAL AGAINST INTERIM COURT DECISIONS MADE AT A PRE-TRIAL STAGE OF CRIMINAL PROCEEDINGS

2021 ◽  
pp. 38-49
Author(s):  
Polina O. Gertsen ◽  
Keyword(s):  
Russian Federation ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Medical Organization ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
The Russian Federation

The article deals with the problem of classifying interim decisions among those that are appealed in a shortened timeline, and determining the list of such decisions, as well as the closely related problem of determining the rules for calculating such a shortened timeline. Currently, the Criminal Procedure law provides for the possibility of appealing a number of interim decisions made at a pre-trial stage of criminal proceedings before the final decision Moreover, for appealing some interim decisions at a pre-trial stage of criminal proceedings, a general period of appeal is provided - 10 days from the date of the court decision, or the same period from the date of serving with a copy of the decision the person who is in custody, while for others a shortened timeline is 3 days from the date of the decision. Meanwhile, it follows from the literal interpretation of the Criminal Procedure Code of the Russian Federation that within a shortened three-day period, court decisions on the election of preventive measures in the form of a ban on certain actions, bail, house arrest, detention, the refusal to apply them or extend their application can be appealed. At the same time, such a conclusion is not confirmed either in the positions of the Plenum of the Supreme Court of the Russian Federation or in judicial practice. Based on the analysis of the criminal procedure law, the position of the Supreme and Constitutional Courts of the Russian Federation, scientific literature and practice, several problems are highlighted. Thus, the author states the discrepancy between the provisions of the Code of Criminal Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation when it comes to establishing the terms for appealing the court decision on a preventive measure in the form of bail. In addition, there is no single criterion for establishing shortened deadlines for appealing interim decisions, and there-fore, the list of such decisions requires analysis. In addition, the Criminal Procedure Code of the Russian Federation does not contain a norm that determines the rules for calculating daily terms. The author formulates several proposals for amendments. It is proposed to determine the criteria for a shortened appeal timeline as the restriction of the constitutional right to liberty and immunity of a person that requires the immediate judicial review of the lawfulness of such a decision. It is also necessary to correct the phrasing of Article 106 of the Criminal Procedure Code of the Russian Federation, which defines the procedure for applying a preventive measure in the form of bail, and establish the rule that appeal against such an interim court decision is filed according to the rules of Chapter 45.1 of the Criminal Procedure Code within ten days. The list of court decisions which must be appealed in a shortened timeline must be expanded by a court decision on putting a suspect or an accused into a medical organization providing medical or psychiatric care in hospital settings for forensic examination, as well as the extension of a person’s stay in a medical organization. In addition, the author has analyzed the approaches to the calculation of daily terms and proposes to amend Part 1 of Article 128 of the Criminal Procedure Code of the Russian Federation by establishing a single procedure for calculating daily terms, which does not take into account the day that served as a starting point of the term.

Extradition of a Person: The National Law of Ukraine and the Case Law of the European Court of Human Rights

2021 ◽  
Vol 39 (9) ◽  
Author(s):  
Tatiana H. Fomina ◽  
Volodymyr I. Galagan ◽  
Zhаnnа V. Udovenko ◽  
Serhii Ye. Ablamskyi ◽  
Yana Yu. Koniushenko
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Case Law ◽  
Criminal Offense ◽  
National Legislation ◽  
Procedure Code ◽  
European Court ◽  
Relevant Case ◽  
The Right

This article aims at establishing and emulating the relevant issues surrounding the detention of person presumed of committing a criminal offense outside the territory of Ukraine in respect with the provisions adumbrated by the European Court of Human Rights. The study was conducted through the prism of national legislation and the relevant case law of the European Court of Human Rights. The issues of realization of the detainee's rights, including the right to protection, were considered separately. According to the results of the study, certain ways to improve the provisions of the Criminal Procedure Code of Ukraine have been formulated.

Judicial Control and Prosecutorial Supervision in the System of Guarantees for Observing the Rights and Freedoms of a Suspect Person

2020 ◽  
Vol 9 (3) ◽  
pp. 792
Author(s):  
Talgat T. DYUSSEBAYEV ◽  
Aizhan A. AMANGELDY ◽  
Talgat T. BALASHOV ◽  
Ainur A. AKIMBAYEVA ◽  
Kuanysh ARATULY ◽  
...  
Keyword(s):  
Human Rights ◽  
Preliminary Investigation ◽  
Criminal Procedure ◽  
Evidence Based ◽  
Criminal Proceedings ◽  
Judicial Control ◽  
Procedure Code ◽  
Legitimate Interests ◽  
Cis Countries ◽  
Special Studies

In the process of reforming the criminal procedure legislation, the institution of the prosecutor’s office has become one of its important aspects. The judiciary, being one of the independent and autonomous branches of power in criminal proceedings, which is a system of protecting the rights and freedoms of citizens, is by far the most effective structure for protecting human rights. The article reveals the essence of judicial control and prosecutorial supervision, identifies a number of problems in the form of potential threats to ensure the rights and legitimate interests of a suspect (accused) in this form of preliminary investigation. As a result of the study, the following was stated. The current provisions of the CIS constitutions regulating the sphere of human rights and freedoms have made it possible to single out separate independent areas in the activities of the prosecutor’s office. Based on the practical problems that arise in the conditions of the new Criminal Procedure Code in the CIS countries, the authors consider it reasonable that the current oversight functions assigned to the prosecution authorities in ensuring the rights and freedoms of a suspect and an accused during the investigation, necessitate further special studies with the aim of development of evidence-based proposals for their resolution.  

scholarly journals Grounds for Canceling Seizure in Pre-Trial Criminal Proceedings

2020 ◽  
pp. 228-233
Author(s):  
Boris B. Bulatov ◽  
◽  
Alexander S. Dezhnev ◽  
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Public And Private ◽  
Private Interests ◽  
Procedure Code ◽  
Civil Lawsuits ◽  
The Russian Federation

The article examines the normative legal basis of the grounds for canceling property seizure in pre-trial criminal proceedings. The problem of the legislator’s usage of evaluative categories in removing investigator’s, interrogator’s or court’s restrictions is also analyzed. The solution of this problem is made dependent on the implementation of public or private interests. Discussing these issues, the authors come to the conclusion that this sphere is neither presented nor analyzed in academic monographic works. This circumstance indicates the novelty of the study owing to the legal positions of the Constitutional Court of the Russian Federation on the issue. The conclusion about the priority of public principles over private interests concerning matters which are not related to civil lawsuits is made on the grounds of empirical data and the analysis of legislative approaches. The contradictions of the provisions of the Criminal Procedure Code of the Russian Federation regulating the basis and procedure for canceling property seizure and the laws on bankruptcy are identified. The directions for improving the legal regulation of these issues are presented. The necessity of a multisectoral regulation of some aspects of law enforcement is inferred. The examination of private principles in canceling property seizure is connected with securing a civil lawsuit in criminal proceedings. The authors substantiate the existence of additional opportunities in making decisions in this field via the legal regime. This regime is also used in some other legal acts and may be put into practice in accordance with the Criminal Procedure Code of the Russian Federation. However, the imposed restrictions can be canceled on the basis of the decision by a person considering a criminal case. The authors note the incoherence of some provisions of Part 3 and Part 9 of Article 115 of the Criminal Procedure Code of the Russian Federation. This incoherence is connected with different approaches to the view on public and private interests in decision making. The authors substantiate the necessity of a legal linking of grounds for canceling property seizure with the decision on imposing this resriction. The conclusion about the comprehensive order of property seizure is made in the final part of the article. It is also stated that this order does not contain distinct criteria of the legality of the decision. Certain parts of the criminal procedure laws should be corrected. Some ways to improve the field of legal regulation concerning the opportunity of canceling seizure are given.

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